Summary:
By contracting marriage, what do spouses commit themselves to? To find the answer to this question, one must look at the Rwandan Civil Code, Article 171(3o): Procedure for marriage celebration: Oath of Spouses: ‘I….., having heard what the law obliges the spouses, agree without any coercion that you……..are my wife/husband and we shall cohabit as per our contract and according to the Rwandan law’
Conjugal obligations: Article 197(1o) Duty of cohabitation: Marriage creates a marital community with a duty of cohabitation.
While this ‘duty of cohabitation’ is generally interpreted to imply that spouses have the duty to ‘consume’ their marriage, the law does not specify the modalities of sexual intercourse, leaving that to the ‘imagination’ of spouses.
While adultery constitutes a cause of divorce, it must not be a condition for divorce: A marriage union is much more important than the sole sexual act – albeit one of its key components. Spouses should be given the right to safeguard the other interests accrued from their marriage, especially their children, even when they may fault on their sexual duties inside the official union.
In the advent of adultery, spouses, within their private arrangement may so choose to forgive one another, seek couples-counselling, or indeed proceed in extra-marital affairs without the state interfering. One spouse however may decide to bring forth a formal complaint, but such must be treated in a manner that leaves options of divorce or reconciliation in the hands of the married couple.
Pacta sunt servanda: The principle implies that ‘an agreement is only binding upon the parties to it and must be performed by them in good faith.’ It is thus the responsibility of each party to the contract of marriage, to conduct due diligence before entering the said contract to verify the co-contractor’s faithfulness. The state only acts to legitimize spouses’ self-declared testimonies of faith.
Intuitu Personae: A contract of marriage is between two specific individuals exclusively; no third party may be bound to fulfill the duties and abstinences required by a contract of marriage. It makes no legal sense therefore to prosecute unmarried persons, whom have never made any commitment of faithfulness to anyone, for having cooperated in the commission of the crime of adultery;
Background:
Public opinion traces criminalization of adultery to the advent of colonialism and foreign religions in Rwanda. Islam and Christianity both castigate the act, while placing the blame on the Rwandan woman, and initially glorifying and rewarding the man[1]
Interview with female Genocide survivors however, revealed that in the pre-genocide government, the criminalization of adultery was a sort of Damocles sword hanging over young Tutsi women, taken, at times against their will, and made concubines of high ranking officials. It served as a device of blackmail, intimidation and harassment to ensure that the concubines and their children never claimed any rights or protection. As a result, The Rwandan Penal Code of the time reserved a harsher sentence for women than for men for the same crime of adultery, with women assured of a jail sentence, while men could walk off with just a monetary fine[2]
‘Ibizungerezi’ (Women to make you loose your mind) as they were sarcastically referred to, used to be housed in a Kigali suburb – also ironically referred to as ‘Kabeza’ (beauty area), they were socially ostracized, and lived, with their children under a permanent anguish of detention and character assassination. That such laws have managed to remain in our penal code after the genocide, is an honest oversight; that it came to be reinforced would be an ironic outcome, totally inconsistent with the post-Genocide government, which has emancipated ALL women and holds at heart the best interests of the child. This analysis appeals to two groups, namely the Rwandan Patriotic Front (RPF) and the Forum of Women Parliamentarians (FFRP). The two combined, hold a significant majority in parliament.
Indeed our young understanding of the RPF, is that of a progressive mass movement, which thinks big and refrains from regulating consensual, intimate arrangements among consenting adults. Moreover, such laws, as any dogmatic, victorian, puritan policies of the sort of ‘banning miniskirts[3], hijab’[4], unfairly target women and continue to perpetuate the patriarchal society that we live in and finally, they are quiet spurious in the sense that they often do not at all reflect the behavior of society.
Disclaimer: For all technical purposes, this analysis does not condone in any shape or form the act of adultery. It is the author’s firm conviction that adultery is morally wrong. However, we worry that criminalizing it is a violation of the constitutional right to privacy, may have unfair and adverse effects on one spouses more than the other, mainly women, and will certainly affect children.
Having examined the Rwandan constitution, international law, international jurisprudence and doctrine, this paper highlights potential legal and social inconsistencies in the act of criminalizing adultery, and argues that adultery should be made a civil matter, to be handled outside of courts of law;
Those inconsistencies include:
- Inconsistency with the Principle of ‘Pacta Sunt Servanda’ and ‘Intuitu personae’
- Inconsistency with the principle of co-offence and complicity in the commission of a crime;
- Potential violation of the right to privacy (Permanent reputational risk; witch-hunt, blackmail)
- Disregard of the best interests of the child;
- Inconsistency with Rwandan principles of, inter alia, Dialogue, Consensus, Unity and Reconciliation, Out of court settlement of disputes
- Inconsistency with the secular nature of the state: A Victorian mindset in a free country; a dogmatic principle in a secular state;
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